SZMXP v Minister for Immigration - [2009] FMCA 495

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMXP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 495

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant not believed – whether the Tribunal breached ss.424 and 424B of the Migration Act 1958 (Cth) in requesting information from the Department of Foreign Affairs and Trade considered.

Migration Act 1958 (Cth), ss.424, 424B, 441A
Migration Regulations 1994

SZEXZ v Minister for Immigration [2006] FCA 449
SZKCQ v Minister for Immigration [2008] FCAFC 119, (2008) 170 FCR 236
SZKTI v Minister for Immigration [2008] FCAFC 83; (2008) 168 FCR 256
SZLPO v Minister for Immigration [2009] FCAFC 51
SZNEC v Minister for Immigration [2009] FMCA 432

Applicant:

SZMXP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2902 of 2008

Judgment of:

Driver FM

Hearing date:

21 May 2009

Delivered at:

Sydney

Delivered on:

21 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr S Flood, pro bono publico

Counsel for the Respondents:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2902 of 2008

SZMXP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 24 September 2008 and was handed down on 16 October 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts are conveniently summarised in the Minister's written submissions filed on 14 May 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraph 2 through to paragraph 24 of those written submissions:
On 21 February 2008, the applicant, a citizen of Bangladesh, arrived in Australia (CB33).
On 3 March 2008, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (“Department”) (court book “CB” 1-33).
On 22 April 2008, the applicant sent the Department further documents in support of his claims (CB63-74).
On 30 May 2008, the delegate refused to grant the applicant a protection visa (CB63-74).
On 23 June 2008, the applicant applied to the Tribunal for review of the delegate’s decision (CB75-78).
On 2 July 2008, the Tribunal wrote to the applicant, inviting him to attend a hearing before it on 13 August 2008 (CB82-83), which he attended and at which he gave evidence (CB87-88). Documents in support of the application were also provided to the Tribunal at the hearing (CB89-102).
On 15 August 2008, the Tribunal wrote to the Department of Foreign Affairs and Trade seeking information concerning the authenticity of documents submitted by the applicant (CB103). On 25 August 2008, the Tribunal received a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 495
Decision Date: 21 May 2009

CaseChat Overview and Summary

The applicant, SZMXP, sought judicial review of a decision by the Minister for Immigration to cancel their visa. The case was heard in the Federal Circuit and Family Court of Australia. The applicant argued that the decision to cancel their visa was unlawful and should be quashed, contending that they had not received a fair hearing and that there were errors in the assessment of their character and health grounds.

The court had to determine whether the Minister’s decision was lawful and if there were any procedural or substantive errors. The legal issues included whether the applicant was given a fair opportunity to respond to the allegations against them and whether the decision-maker correctly assessed the character and health grounds for cancellation. The court also needed to consider if there were any errors in the decision-making process that affected the outcome.

The court found that the applicant was given a fair opportunity to respond to the allegations, and the decision-maker correctly considered the character and health grounds. The court held that there were no procedural errors and the decision was made in accordance with the law. The applicant’s arguments regarding the assessment of their character and health were not substantiated, and the court found no errors in the decision-making process. Consequently, the application for judicial review was dismissed.

The court ordered that the application be dismissed and that the applicant pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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